Lesson 6 – The Executive: President
Executive refers to that wing of government which enforces
the laws enacted by the legislature and carries on the general administration
of the country.
The President
The constitution of India envisages a parliamentary form of
government in India. Although Article 53 of the constitution says that the
executive power of the Union shall be exercised by the president either
directly or through officers subordinate to him, in practice the president has
to abide by the decisions of the council of Ministers with the Prime Minister
at the head.
The importance of the president in the constitutional set-up
of the country is disclosed by the manner of his election. He is elected by the
members of an electoral college consisting of (i) the elected members of both
the Houses of Parliament; and (ii) the elected members of the legislative
Assembly of the states.
Qualifications to become President
The qualifications for the office of the president are
contained in Article 58 and 59 and the presidential Election Act and are as follows.
a. He/she should be a citizen of India;
b. he/she Should have
completed thirty-five years of age;
c. He/she should be qualified for election as a member of
the Lok Sabha;
d. He /she should not hold any office of profit under the
government of India or the government of any state or under any local or other
authority subject to the control of any of the said governments;
e. He/she should not be a member of either House of
Parliament or a State legislature. If any such person is elected as president,
his/ her seat in the parliament or the state legislature is deemed to have been
vacated;
f. A candidate contesting election for the office of
president has to deposit a security of Rs.15000- With his nomination papers.
This has been done to prevent fake candidates from contesting elections.
Certain office holders, however, are also permitted to stand
as presidents. They are:
1. The current Vice president
2. The governor of
any State
3. A minister of the union or any state (including Prime
Minister and Chief Minister)
Further, Article 59 enumerates that the president shall be
entitled without payment of rent to the use of his official residences and
shall be also entitled to such emoluments, allowances and privileges as may be
determined by parliament by law and, until provision in that behalf is so made,
such emoluments, allowances and privileges as are specified in the Second
Schedule which cannot be diminished during his or her term of office.
Elections of the president
The president is indirectly elected through an electoral
college to ensure due representation to the union as well as the states. The
Electoral College consists of (i) The elected members of both the houses of
parliament; and (ii) the elected members of the Legislative Assemblies of the
states. The nominated members of parliament or State legislature do not take
part in president’s elections. The election is held according to the system of
proportional representation through a single transferable vote.
Therefore, the constitution laydown that the elected members
of the Legislative Assembly of a state shall have as many votes as there are
multiples of 1000 in the quotient obtained by dividing the population of the
state by the total number of members of the Assembly.
Similarly, the constitution tries to maintain a parity
between the strength of the states and the parliament and provides that each
member of the parliament shall be entitled to cast as many votes as are
obtained by dividing the total number of votes of the Legislative Assemblies of
all the states by the total number of elected members of the two houses of
parliament.
All disputes regarding the election of the President are
inquired into and decided by the supreme court of India, whose decision is
final.
Oath
Before assuming his office, the president has to take an
oath or an affirmation in the presence of the Chief Justice of India, or, in
his absence, the senior most judge of the Supreme Court.
Term of the office and removal
The president holds office for a term of five years from the
date on which he assumes his office. He continues in office even after the
expiry of his term until his successor is elected and the office assumed by
him. The president is eligible for re-election. Actually Dr. Rajendra Prasad,
the first president of India, held office for two terms. Thereafter no
president has held office for more than one term. The president can resign his
office before the expiry of five years, by addressing his resignation to the
Vice- President.
Impeachment
The president can be removed from his office before the
expiry of his term through impeachment. According to the constitution, the
president can be impeached only for a violation of the constitution.
Impeachment proceedings can be initiated in either house of the parliament.
Thereafter, the other house investigates the charges.
Vacancy
In case the office of the president falls vacant due to
death, resignation or removal of the president, the vice-president of the India
becomes the president, till fresh elections are held for the post and the new
incumbent assumes office. Under the constitution, such elections have to be
held within six months of the occurrence of vacancy.
Similarly, if the president is not able to discharge his
duties due to the sickness or absence due to other reasons, the vicepresident
discharges the functions of the president. When the vice-president acts as the
president he is entitled to the same salary, allowances and privileges which
are available to the president. In case the vice-president of India is not
available to discharge the duties of the president, the Chief justice of India
performs these duties.
Privileges of the president
The president enjoys a number of privileges –
1. He/she is not answerable to any court for the exercise of
power and the performance of the duties of his office except through
impeachment proceedings.
2. No criminal proceedings can be instituted against him in
any court during his term of office.
3. He/ she cannot be arrested or imprisoned during his term
of office.
4. No civil proceedings can be instituted against him in any
court in respect of any act done by him in his personal capacity, during his
term of office.
5.B.A Political Science Hons. History Lesson 4th Important Notes Part 2
Powers of the president
Executive power
The constitution vests all the executive authority of the Union
in the president which he may exercise either directly or through the officers’
subordinate to him. The executive powers of the president extend to all those
matters with respect to which the parliament has the exclusive power to make
laws.
e. All contracts of the Union Government are also executed
in the name of the president. According to Article 53(2) The President is also
supreme commander of the arm forces of India and has the power to declare war
and make peace. All the major executive appointments of the Union Government
are also made by the president.
Some of the important appointments made by the president
include the Prime Minister and other members of the Council of Ministers; the
Governor of the states; Attorney General of India; Chairman and Members of the
Union Public Service Commission; the Comptroller and Auditor General of India
Chief Justice and Judges of the supreme court; Chief justice and Judges of the
High courts; the commissioner of scheduled caste and scheduled tribes and Backward
classes; Members of Finance Commission; Ambassadors and other Diplomatic envoys
etc. It may be observed that though formally all the above executive powers are
vested in the president he exercises them in the advice of the Prime Minister
and his Council of Ministers. Earlier it was not obligatory for the president
to accept this advice but the 42nd Amendment made it obligatory for the
president to exercise his functions in accordance with the advice of the
Council of Ministers.
Legislative powers
As an integral part of the Parliament, the president of
India enjoys extensive legislative powers. He can summon and prorogue the two
houses of parliament and can dissolve the Lok Sabha. In case of conflict
between the two houses of parliament the president can call a joint sitting of
both the houses to resolve the deadlock. The president addresses either house
of parliament or a joint session of the two houses at the commencement of each
session.
The president also reserves the right to send messages to
either house of parliament with a respect to pending bills or otherwise and the
house is duty bound to consider his message. Certain bills can be introduced in
the parliament only on the recommendation of the president.
The president also enjoys the final authority to decide the
questions regarding disqualification of members and his decision in this regard
is final. However, in this matter the president acts on the advice of election
commission.
The president nominates 12 members to the Rajya Sabha from
amongst person who have distinguished themselves in fine arts, literature,
social service etc. the president also reserves the rights to nominate two
members of the Anglo-Indian Community to the Lok Sabha if he is satisfied that
the community has not been adequately represented in the house.
All the bills after they are passed by the two houses of
parliament must receive the assent of the president. When a bill is presented
to the president for his assent, he can either sign it or refuse his signature
and return the bill to the originating house for reconsideration.
Finally, the president can promulgate ordinances during the
recess of the parliament if he is satisfied that the circumstances warrant an
immediate action. It may be observed that the satisfaction of the president
virtually means satisfaction of the council of ministers.
The legislative powers of the president also extend to
matters falling under the jurisdiction of the state legislature. Under the
constitution, the governor of the state can reserve certain bills, presented to
him for his assent by the state legislature, for the consideration of the
president. Further, certain bills cannot be introduced in the state legislature
without prior sanction of the president.
The president also enjoys the power to issue regulations for
the Union Territories of Andaman and Nicobar Island and Lakshadweep, Minicoy
and Amindivi Islands. These regulations have the same force as the laws of the
parliament. The president also lays the reports and recommendations of several
important bodies and Commissions before the parliament like UPSC, Finance
Commission, CAG etc.
Financial powers
The president also enjoys substantial financial powers. No
money bill can be introduced in the parliament except on his recommendation.
Every year at the beginning of the financial year the president causes to be
laid before the parliament the annual Financial Statement showing the estimated
receipts and expenditure of the Union Government.
The constitution places the Contingency Fund of India at the
disposal of the president who is authorised to make advances out of it to meet
the unforeseen expenditure pending determines the share of the states in the
income tax receipts. He also decides about the grants in aid to be made to the
states of Assam, Bengal, Bihar and Orissa in lieu of their share of the jute
export duty.
The Finance Commission also advises on the principles which
should govern the grants-in aid to the states out of the consolidated und of
India. The president can also seek advice of the Finance Commission on any
other issue concerning the sound finances.
Judicial powers
First and foremost, the president has the power to appoint
the Chief Justices and other judges of the Supreme Court and the high courts.
He can also dismiss them only after an address by each house of the parliament
supported by majority of the total membership of that house and by majority of
not less than two third of the members of the house present and voting has been
presented to the president in the same session for such removal on the ground
of proved misbehaviour or incapacity.
The president can seek advice from the Supreme Court on any
question of law or fact and the court has to tender the same. Above all, as far
the Article 72 of the constitution the President of India also has power to
grant pardon, reprieve, respite, or remission of punishment to any person
convicted of any offence.
a) In all cases where the punishment or sentence is by a
court martial;
b) In all cases where the punishment or sentence is for an
offence against any law relating to matters within the executive power of the
Union;
c) In all cases where the sentence is of death.
The president enjoys legal immunity and is not answerable to
any court of law for anything done in the exercise of his official duties. He
can neither be arrested, nor can judicial proceedings be instituted against him
in any court law. Civil suits can however be brought against the president only
after giving him a written notice of at least two months. So far, no such suit
has been brought against him.
Emergency powers
The constitution has envisaged three types of emergencies
viz.
a) Emergency due to war, external aggression or arm
rebellion;
b) Emergency due to failure of constitutional machinery in a
state; and
c) Emergency due to threat to the financial stability of the
country
a) Emergency due to war, external aggression or arm
rebellion
Article 352 provides that If the president is satisfied that
the security of India is threatened by foreign attack or armed rebellion,
he/she can make a proclamation of emergency in respect of the whole of India or
any part of the country. It is noteworthy that the president can make such a
proclamation even when he feels that there is imminent danger to the security
of India.
The president can make such a proclamation for whole of
India or any part of it. The courts cannot examine whether the grounds of
emergency did exist in fact. The satisfaction of the president is enough to
make a proclamation of emergency.
The proclamation of emergency has to be laid before each
house of parliament and ceases to operate at the expiry of one-month period
unless within this period the proclamation is approved by the resolutions of
both the houses of the parliament. However, if the proclamation of emergency is
issued at a time when the Lok Sabha has been dissolved or the dissolution of
the Lok Sabha takes place during the period of one month without approving the
proclamation, the proclamation must be placed before the Rajya Sabha for
approval.
The proclamation of emergency, if approved by parliament,
remains in force for period of six months from the date of passing the
resolution approving it, unless revoked earlier. Thereafter the parliament can
approve the continuation of emergency for six months at a time.
b) Emergency due to failure of constitutional machinery
in a state
The second type of emergency power given to the president
deals with the failure of constitution machinery in the states. Article 356
provides that if the president, on receipt of report from the Governor or
otherwise, is satisfied that the government of a state cannot be carried on in
accordance with the provisions of the constitution, he can make a proclamation
of emergency.
Every proclamation has to be laid before each House of
parliament and continues in force for two months unless approved by resolutions
of both houses of parliament. Such proclamation continues for six months and
can be extended by subsequent resolution of parliament by six months at a time
but not beyond three years.
After the expiry of this minimum time limit of three years
neither the parliament nor the president can continue emergency in the state
and the constitutional machinery has to be restored there. In original article
356 the period was six months at a time of 42nd Amendment. But 59th Amendment
provided special provision to continue president’s rule beyond three years only
in Punjab. 63rd Amendment repealed Amendment 59 but 65th Amendment again gave
power to parliament to extend president’s rule in Punjab.
Earlier 38th Amendment had made it clear that the
satisfaction of the president shall be final and conclusive and shall not be
questioned in any court on any ground. This provision has been omitted by 44th
Amendment. But in general courts have taken a position that such a proclamation
was a political matter and not a legal one, therefore, they cannot pass a
judgment on the same.
A proclamation of emergency under Article 356 means that the
president assumes to himself all or any of the functions of the Government of
the state including those belonging to the Governor or any other authority. It
is because of this that this emergency is called “President’s Rule”.
c) Emergency due to threat to the financial stability of
the country
According to Article 360 the president can declare financial
emergency if he is satisfied that a situation has arisen where by the financial
stability or credit of India or of any part of the territory thereof is
threatened.
During such an emergency he can direct the union as well as
the state government to observe such canons of financial propriety as he may
deem desirable. All money bills and financial bills have to be reserved for the
consideration of the president after they are passed by the legislatures of the
state.
Diplomatic power
The president represents India in the international affairs
and enjoys extensive diplomatic powers. He sends Indian diplomatic envoys to
foreign states and receives their envoys accredited to India. He can also ask
the foreign diplomats to leave the country by declaring them as
persona-non-grata. All the international treaties and agreements are concluded
by India on behalf of the president and are subjected to his final signature.
Position of the president
The position of the president has been a subject of great
controversy ever since the inauguration of the constitution. Different scholars
have broadly expressed two views. Those who have taken a purely legalistic view
of his position assert that the constitution has vested all the executive
powers in the President which he can exercise either directly or through
officers subordinate to him.
There was no mention in the constitution before the
enactment of the 42nd Amendment that the President was bound to accept the
advice of the Council of Ministers. Naturally these scholars assumed that the
president could act on his own and assume autocratic powers.
They have argued that the president is expected to be merely
a constitutional ruler and the real authority rest with the popularly elected
Council of Ministers, since power and responsibility must go hand and hand.
This view was given a formal legal shape by the 42nd amendment which clearly
stipulated that the president in the exercise of his functions shall act in
accordance with the advice of the Council of Ministers.
The limited role of the president of India was further
confirmed by the 44th Amendment, which provided that “the president may require
the Council of Ministers to reconsider such advice, either generally or
otherwise, and the president shall act in accordance with the advice tendered
after such reconsideration”.
According to Dr. Bhim Rao Ambedkar who was the chairman of
the Drafting Committee of the constitution, “the president occupies the same
position as the king under the English constitution… he is the head of the
Nation but does not rule the Nation. He will be generally bound by the advice
of the Ministers.
Despite the limited role envisaged for the Indian president
by the 42nd and 44th amendments, it would be certainly wrong to assert that the
president is merely a rubber stamp and has no discretion in any matter.
A capable president can certainly make his weight felt both
by executive and the legislative departments. He can send messages to the
parliament and can ask the Council of Ministers to reconsider the advice
tendered to him. He can greatly influence the decision of the cabinet through
advice and criticism. Under certain conditions he can make use of his
discretion. F
No president till date however, has exceeded his authority
and has asserted himself/herself. Most of the presidents have played
constructive role and have guided the Indian Government meaningfully. During
the emergency in India caused by the Chinese invasion, president Radha krisnan
conducted himself in a noble and dignified way. He did not overdo his role, nor
did he try to assert his authority. There has been no rivalry in India between
the president and the prime minister.
However, it cannot be doubted that the real executive power
lies in the Prime Minister and his Council of Ministers, and the President is
the only formal executive.
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